DISABILTY DISCRIMINATION AMENDMENT BILL 2002

OUTLINE

This Bill amends the Disability
Discrimination Act 1992 (DDA) to allow the Human Rights and
Equal Opportunity Commission (HREOC) to grant exemptions from
disability standards dealing with public transportation services
and facilities, including, for example, on grounds of unjustifiable
hardship. The ability to grant appropriate up-front
exemptions from these disability standards is an essential element
in providing greater certainty to all those affected by the
disability standards, including public transport providers and
operators.

The DDA provides the Attorney-General with the
power to formulate disability standards in relation to certain
areas, including for the provision of public transportation
services and facilities to a person with a disability.
Disability standards are designed to spell out in greater detail
rights and obligations under the DDA. While a breach of
disability standards may give rise to a complaint under the DDA,
compliance with a disability standard is a defence to a complaint
under its general provisions.

Section 55 of the DDA gives HREOC the ability
to grant an exemption, or further exemption, from the operation of
a provision of Division 1 or 2 of the DDA, on such terms and
conditions as are specified in the exemption instrument, for a
period not exceeding 5 years. However, this ability
does not currently extend to exemptions from disability
standards. The Attorney-General proposes to formulate
disability standards dealing with public transportation services
and facilities and table them in both Houses of Parliament as soon
as the proposed amendments to the DDA are passed.

The amendments to the DDA will allow for
applications to be made to HREOC for the granting of an
up-front exemption, for example, on the basis that it may not
be possible to comply fully with disability standards for
financial, technical or other reasons. An exemption may be
granted from those particular requirements under the terms and
conditions, and for the period specified, in the exemption
instrument. An exemption will protect an operator or provider
from the operation of section 32 of the DDA in respect of a
complaint that might otherwise arise about a breach of the relevant
disability standards.

This Bill also provides that HREOC must take
into account the advice of a body prescribed in the Regulations
before granting an exemption from disability standards dealing with
public transportation services and facilities. The body
prescribed for that purpose will be the National Transport
Secretariat.

Disability standards dealing with public
transportation services and facilities will provide a balanced
approach, seeking to eliminate, as far as possible, discrimination
against people with disabilities, while ensuring that this does not
place undue burdens on industry.

FINANCIAL IMPACT

The amendments are expected to have little, if
any, financial impact.

NOTES ON CLAUSES

Clause 1: Short Title

2. This is a formal
item, which specifies that the amending Bill, when enacted, will be
known as the Disability Discrimination Amendment Act 2002.

Clause 2: Commencement

3. This clause
provides that Schedule 1 of the Bill containing amendments to be
made by the Bill, when enacted, will commence by Proclamation or 6
months after the Royal Assent, if no date is set. Clauses 1
to 3 of the Bill, which contain procedural aspects of the Bill,
will commence on the day the Bill receives the Royal Assent.
Some flexibility about the day of commencement is required so that
new regulations can be promulgated specifying the National
Transport Secretariat as a body that must be consulted by HREOC
when considering an exemption from disability standards dealing
with public transportation services and facilities. It is
expected that the new regulations will be made with effect on
commencement of the Act.

Clause 3: Schedule(s)

4. This clause
explains that the items in the Schedule to the Bill amend the Act
specified in the Schedule, that is, the Disability
Discrimination Act 1992 .

Schedule 1 - Exemption from disability standards

Disability Discrimination Act
1992

Item 1 - Subsection 31(4)

5. This item
corrects a drafting error in subsection 31(4) of the DDA by
replacing two references to guidelines with references to
disability standards. The subsection is intended to deal with
disability standards rather than guidelines.

Item 2 - Section 33

6. Section 33 of
the DDA currently does not allow for exemptions to be granted from
disability standards. This item repeals and replaces section
33 to allow for the effective operation of the amended section 55,
which extends HREOC’s power to grant
exemptions.

Item 3 - After subsection 55(1)

7. This item
extends HREOC’s power to grant exemptions from the provisions
of the DDA to include disability standards dealing with public
transportation services and facilities. Section 32 provides
that it is unlawful to contravene a disability standard. The
insertion of subsection (1A) allows HREOC to grant an exemption, on
application, from the operation of section 32, as specified in the
instrument granting the exemption.

8. The insertion of
subsection (1B) limits the exemption from the operation of section
32 to an exemption in relation to the requirements of disability
standards dealing with public transportation services and
facilities, which are formulated by the Attorney-General under
section 31(1)(d) of the DDA.

9. The insertion of
subsection (1C) has the effect of requiring HREOC to take into
account the advice of a body prescribed in the regulations before
granting an exemption. The National Transport Secretariat
will be prescribed by regulation for the purposes of disability
standards dealing with public transportation services and
facilities.

10. The
insertion of subsection (1D) ensures that HREOC can consult any
other body or person it considers appropriate to consult before
granting an exemption in relation to the requirements of disability
standards dealing with public transportation services and
facilities. This will allow HREOC to consult a broad range of
interests, as well as seeking further technical advice, where
necessary, in addition to the advice of the National Transport
Secretariat.

Item 4 - Subsection 55(2)

11. This
item ensures that the extended exemption power provided in amended
section 55 operates effectively for exemptions in relation to the
requirements of disability standards dealing with public
transportation services and facilities, including for a grant of a
further exemption.

Item 5 - Subsection 55 (3)

12. This
item ensures that the extended exemption power provided in amended
section 55 operates effectively in relation to disability standards
dealing with public transportation services and facilities.
As with the granting of an exemption, or further exemption, from
the provisions of the DDA, the terms and conditions and period of
an exemption in relation to part or all disability standards are as
specified in the instrument granting the exemption.

Item 6 - After subsection 132(1)

13. This
item empowers the making of regulations to prescribe a body that
HREOC must consult in considering an application for an exemption
from disability standards dealing with public transportation
services and facilities, as required by item 3.